5.2 Implied Causes of Action

Updated 2012

 

The concept of a cause of action originated in the common law's forms of proceedings and was not based upon the federal Constitution or statutes. In 1938, the Federal Rules of Civil Procedure were adopted and the forms of proceeding were abolished. The term "cause of action" was intentionally not utilized. Instead, the rules substituted the concept of a "claim." This change was sought, in part, due to the perception that the forms of proceedings were inadequate to provide remedies for violations of substantive rights./298/ Nevertheless, courts continue to require plaintiffs to demonstrate that they are entitled to sue to enforce a specific duty owed by the defendant./299/ Thus, "the plaintiff must demonstrate both that the defendant's conduct was wrongful (inconsistent with a duty resting on the defendant) and that the plaintiff is within the category of persons entitled to judicial relief because of the wrongful conduct.”/300/

In the 1960s and early 1970s, the Supreme Court was receptive to implying a cause of action in the federal Constitution as well as federal statutes that lacked a private right of action./301/ While these decisions have not been formally overruled, the Court is now highly reluctant to imply a cause of action for damages in the Constitution. Recently, in a case involving a constitutional claim for damages, the Court stated that "implied causes of action are disfavored."/302/ The Court has similarly imposed a nearly impossible standard for implying a cause of action in a federal statute, requiring a plaintiff to supply evidence of congressional intent to confer a right of action from the text and structure of a statute that does not expressly specify access to enforcement in the federal courts./303/ However, if your client's claim is covered by one of the earlier Supreme Court cases holding that a statute contains an implied cause of action, the statute remains enforceable under the previously recognized implied cause of action. The Court is, however, much more willing to permit claims for injunctive and declaratory relief to determine whether state law conflicts with federal law under the Supremacy Clause of the Constitution./304

5.2.A. Implied Constitutional Causes of Action for Damages

In 1971, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court created a federal cause of action against federal officers for damages due to a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures./305/ This cause of action is not based on an express or implied statutory authorization to sue, but rather is grounded in the Constitution. Such an action is often referred to as a “Bivens action,” a “cause of action arising directly under the Constitution,” or a “constitutional tort.” This section discusses the circumstances in which a Bivens action may be brought.

Bivens actions are not needed when a statute authorizes the relief sought. For example, Bivens actions are not necessary to sue for claims under the Tucker Act and the Federal Tort Claims Act, because those statutes authorize damages./306/ In contrast, the Administrative Procedure Act does not authorize damages against persons acting under color of federal law, and therefore, Bivens actions are necessary to support a damage claim against individual federal actors for constitutional violations.

Although the Court has not overruled Bivens, recently the Court has disparaged Bivens and refused to extend it. In Correctional Services Corporation v. Malesko, the Court expressly limited Bivens actions to the narrow range of claims previously recognized, those arising under the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution./307/

5.2.A.1. Constitutional Torts

A Bivens action is a suit for damages against a federal actor who, acting in his or her individual capacity under color of federal law, is alleged to have violated the plaintiff’s constitutional rights. The claim is a judicially created mechanism to afford redress to plaintiffs who lack a statutory cause of action or an adequate statutory remedy, or both./308/ The action may be removed to federal court at the discretion of the defendant and administrative remedies need not be exhausted before the claim is brought./309/ Generally, the basic elements of a Bivens action are the following:

  1. the plaintiff has a constitutionally protected right under the Fourth, Fifth, or Eighth Amendments;
  2. the defendant, a federal official, violated that right;
  3. the plaintiff lacks a statutory cause of action, or an available statutory cause of action does not provide monetary compensation against the defendant;
  4. no “special factors” suggest that the court should decline to provide the judicial cause of action and remedy, and
  5. no appropriate immunity can be raised by the defendant./310/

In Bivens, the Court implied a damage remedy under the Fourth Amendment against individual federal law enforcement officers who had allegedly arrested Bivens and searched his home without a warrant or probable cause, causing him mental suffering, humiliation, and embarrassment. At that time, the Federal Tort Claims Act did not provide a remedy./311/ The Court created a federal remedy by implication, reasoning that a state court tort claim would not adequately redress the constitutional wrong suffered by Bivens because the state laws of trespass and invasion of privacy were not intended to remedy the harms that result from a federal agent’s abuse of authority./312/

The Court extended the implied cause of action principle to Fifth Amendment claims in Davis v. Passman./313/ The female plaintiff alleged that then-Congressman Passman violated her Fifth Amendment right to equal protection by replacing her with a man./314/ Because Congress had excluded congressional employees from the reach of Title VII, the Court held that Davis had no other viable remedy, that a damage remedy was judicially manageable, and that Davis could, therefore, sue directly under the Fifth Amendment./315/

In both Bivens and Davis, the plaintiffs had no other available remedy; it was, therefore, a question of “damages or nothing.”/316/ In each case, this factor weighed heavily in the Court’s decision to imply a cause of action. However, the Court subsequently created a Bivens action in a case in which the plaintiff clearly had a statutory cause of action and limited remedy under the Federal Tort Claims Act. In Carlson v. Green, the Court allowed a Bivens action under the Eighth Amendment by an asthmatic prisoner who died against individual federal prison officials who allegedly failed to give him needed medical attention./317/ The Court decided that a Bivens action was available because Congress had explicitly stated its intent to allow both the Federal Tort Claims Act and Bivens actions to coexist as complements./318/ Carlson marks the high-water mark for the Bivens cause of action; the Supreme Court has declined further invitations to extend Bivens.

5.2.A.2. The Limitations on Bivens

Although Bivens, Davis, and Carlson initially seemed to suggest that Bivens actions for constitutional violations would be broadly available to fill gaps in federal damage remedies, the Court subsequently refused to extend Bivens actions beyond the scope of those earlier cases. Presently, when Congress provides a statutory cause of action without expressly indicating its intent to allow Bivens actions as well (as was the case in the legislative history examined in Carlson), the Court is unlikely to imply a cause of action.

The Court began to limit Bivens in Bush v. Lucas, a suit by a NASA employee against his supervisor for damages for emotional distress and mental anguish./319/ The plaintiff alleged that he had been demoted and his salary decreased in retaliation for exercising his First Amendment right to speak on a matter of public concern. Although the employee obtained reinstatement and full back pay through the civil service administrative process, that process did not allow damages for emotional distress or mental anguish. Acknowledging that “existing remedies do not provide complete relief for the plaintiff,” the Court nevertheless refused to create a Bivens action./320/ The Court concluded that the policy question of whether an employee should be permitted to recover damages from an employer was more appropriately left to Congress./321/ Because Congress did not provide for individual liability within the existing “elaborate” and “comprehensive” remedial civil service scheme, or elsewhere, the Court refused to create an implied right of action. The Court stated:

When Congress provides an alternative remedy, it may, of course, indicate its intent—by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself—that the Court’s power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any “special factors counseling hesitation” before authorizing a new kind of federal litigation./322/

Bush treated the existence of a congressionally designed remedial scheme as a “special factor counseling hesitation” in the Court’s analysis of whether to imply a constitutional cause of action. This suggests that the more comprehensive the remedial scheme, the less willing the Court is to imply a Bivens action. Thus, the Court declined to imply a right of action in Chappell v. Wallace, a case seeking damages from superior military officers for violating a constitutional right to be free from racial discrimination./323/ The Court deemed the existence of a separate, congressionally enacted, “comprehensive internal justice system to regulate military life” and “the unique disciplinary structure of the Military Establishment,” to be “special factors” weighing against an implied right of action./324/ In United States v. Stanley, this unwillingness to create a Bivens action based on “special factors” was broadened to include any claims that “arise out of or are in the course of activity incident to service.”/325/

In 1988, the Court confirmed that it would not create a Bivens remedy when Congress provided other meaningful remedies unless Congress explicitly preserved a Bivens remedy. In Schweiker v. Chilicky, the Court refused to imply a cause of action under the Due Process Clause of the Fifth Amendment in favor of social security disability recipients whose benefits had been terminated in a continuing disability review./326/ The plaintiffs sued federal and state officials responsible for the review. The plaintiffs alleged that the officials terminated the recipients in clear violation of the procedural requirements of the Fifth Amendment, a determination of impropriety that Congress apparently agreed with in its enactment of legislation to stop the terminations./327/ However, in language that reinforced the presumption against Bivens actions unless Congress clearly provides for them, the Court stated:

In sum, the concept of “special factors counseling hesitation in the absence of affirmative action by Congress” has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies./328/

As one district court subsequently put it,“[i]t may safely be said, therefore, that the dictum of Carlson v. Green which urged the creation of constitutional torts unless Congress had provided a remedial scheme equivalent to Bivens and had expressly stated that the remedy was exclusive, is not good law.”/329/

In 2001, the Supreme Court decided Correctional Services Corporation v. Malesko, which, again, demonstrated the Court’s refusal to extend Bivens and, indeed, a potential willingness to confine it./330/ In Malesko, the Court used strong language to reject a Bivens suit by a federal inmate against a private corporation that operated a halfway house under contract with the federal Bureau of Prisons. The Court referred to Bivens as a “limited holding” and noted that the Bivens Court’s exercise of its authority to imply a constitutional tort had relied heavily on J.I. Case Company v. Borak,/331/ a case it had since “abandoned.”/332/ The Court noted that, in the decades subsequent to Bivens, the Court had extended its holding only twice and that it had otherwise “consistently refused to extend Bivens liability to any new context or new category of defendants.”/333/

This language could be considered dicta because Malesko went on to emphasize that the defendant was a private corporation, for which Bivens actions were inapplicable. The Court compared the Malesko case to Federal Deposit Insurance Corporation v. Meyer, where it had refused to extend Bivens to permit suits against a federal agency whose sovereign immunity Congress had waived./334/ In Meyer, the Court reasoned that a damages suit against a federal entity would not advance the core purpose of the Bivens remedy, which was to deter individual federal officers from committing constitutional violations./335/ Similarly, the Malesko Court held that a Bivens action against a private entity would also lack deterrent effect for individual violations of the Constitution. Moreover, federal prisoners housed in private facilities enjoyed possible alternative remedies (such as state tort remedies) unavailable to inmates in government facilities. The Court asserted that a Bivens remedy had “never [been] considered a proper vehicle for altering an entity’s policy” rather, “injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”/336/

Thus, the Court had several bases for distinguishing the Malesko facts from the Bivens situation and could have reached its conclusion without using any of the strong limiting language quoted above. The Court’s decision to go out of its way to cabin the Bivens remedy within very narrow parameters signaled a refusal to extend Bivens to new constitutional claims. Indeed, the Court recently reaffirmed Malesko in a case seeking to imply and Eighth Amendment Bivens claim against a private correctional facility in Minneci v. Pollard./337/ In Minneci, the Court found that the state tort law supplied a remedy for a prisoner alleging inadequate medical care and treatment and rejected the argument that the Court should look only to federal law, rather than the "vagaries" of state law to determine whether an adequate alternative remedy exists./338/

In the 2009 case of Ashcroft v. Iqbal, the Court again expressed open hostility to extending Bivens. The case held that the allegations pled in the complaint were insufficient to support a claim of religious discrimination under the First Amendment. While Bivens was not central to the Court’s holding or reasoning, the Court downplayed Bivens, stating: “[b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.’”/339/

Indeed, relying on the “special factor” language in Chilicky, courts no longer afford plaintiffs a Bivens remedy for violations of the Fourth, Fifth, and Eighth Amendments, even in the absence of an adequate statutory remedy, if such absence is deemed to reflect a Congressional intent to preclude Bivens actions./340/ The Court itself has signaled the constriction of Bivens actions under these amendments unless the case closely resembles Bivens, Davis, or Carlson./341/ In one of its most recent Bivens cases, the Court held in Wilkie v. Robbins that allegations by a ranch owner of organized efforts by federal officers to coerce an easement across his property did not constitute Fourth and Fifth Amendment violations for the purposes of a Bivens action./342/ For the Wilkie Court, the existence of “alternative, existing process[es]” for protecting the infringed-upon interests of the ranch owner, counseled against inferring constitutional causes of action under either amendment./343/ Furthermore, the Court held that “special factors” weighed against authorizing a Bivens action, specifically the complexity of the allegations./344/ As a result, a Bivens claim in this case was not a “workable cause of action.”/345/

In essence, Bivens, Davis, and Carlson have been limited to their facts, and are unlikely to be extended, at least for the foreseeable future./346/ While those cases remain good law, their applicability has been severely restricted. For fact patterns closely resembling those cases, therefore, courts may imply a cause of action under the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment Due Process Clause’s equal protection component, and the Eighth Amendment right to be free from cruel and unusual punishment./347/

The Court has also clearly assumed, without so holding, the viability of Bivens claims under the First Amendment./348/ The Court applied this assumption in Hartman v. Moore, where it held that a Bivens plaintiff who claimed that government employees violated his First Amendment rights by participating in a retaliatory criminal prosecution, must plead and prove the absence of probable cause underlying the criminal case./349/ More recently, the Court repeated this assumption in Ashcroft v. Iqbal, stating that it was “assum[ing], without deciding, that [a] First Amendment claim is actionable under Bivens.”/350/ Thus, it remains possible to seek relief under Bivens for violations of the First Amendment as well./351/

5.2.B. Implied Private Statutory Causes of Action

As discussed earlier in this Chapter, many federal statutes expressly provide a right for injured individuals to sue to enforce the law. When an express right specific to a particular statute is unavailable, advocates must determine whether a claim may be brought under the general authority of statutes such as the Administrative Procedure Act or 42 U.S.C. § 1983. Those statutes, of course, have their limitations, including a failure to extend to private parties who are not state actors. Consequently, advocates may need to inquire whether a private right of action may be implied in a particular federal statute. As explained below, beginning in the mid-1970s, the Supreme Court sharply constricted the availability of implied private rights of action for federal statutes and further restricted the enforceability of federal regulations in the 2001 case of Alexander v. Sandoval./352/

5.2.B.1. Limitation of an Implied Private Right of Action to Enforce Federal Statutes

In the late 1960s, the Supreme Court held that private individuals could enforce federal anti-discrimination statutes to remedy explicit racial discrimination, based on an implied statutory cause of action./353/ These decisions focused on the need to provide a remedy to correct racial injustice when a federal statute establishes the right to be free from racial discrimination.

In 1975, in Cort v. Ash, the Court, however, unanimously limited the use of implied statutory causes of action./354/ In an opinion by Justice Brennan, the Court set forth a four-prong test for finding an implied cause of action. The test asks whether 1) the plaintiff is in the class for whose especial benefit the statute was enacted; 2) there is any indication of legislative intent, explicit or implicit, either to deny or to create a private right to enforce; 3) a private right to enforce would be consistent with the underlying purpose of the statute; and 4) the cause of action is traditionally in the purview of state law, such that a federal right to enforce would be inappropriate./355/ The holding of the case was that there was no implied cause of action in the Federal Election Campaign Act for stockholders to obtain damages from corporate directors, because none of the four factors were met.

In Cannon v. University of Chicago, decided in 1979, the plaintiff alleged that she was denied admission to medical school based on her gender, in violation of Title IX of the Education Amendments of 1972. The Court found that Title IX met all four of the Cort v. Ash prongs./356/ With regard to legislative intent, the Court reasoned that in drafting Title IX, Congress relied upon the Court's cases from the late 1960s which had implied a cause of action in statutes designed to remedy racial discrimination, such as the Voting Rights Act. Title IX was also modeled on Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by recipients of federal funds, and had been found enforceable under an implied private right of action by numerous courts of appeals./357/ Therefore, the Court concluded that Congress had intended Title IX to be privately enforceable. The Court also stated that it was "decidedly receptive" to an implied cause of action that was helpful to the statutory purpose./358/ However, the Court cautioned Congress against future reliance on the implied cause of action cases from the 1960s. Justice Stevens, writing the majority opinion, stated, "When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights."/359/

The availability of an implied private right of action was sharply narrowed in two cases decided just a few months later.  Without rejecting the four-part test, the Court interpreted the test as being most heavily focused on the second prong: evidence of congressional intent to create a private right./360/ The Court looked for specific statutory language establishing a right to sue and to obtain damages./361/ Since the statutes examined did not contain an express private right of action, there was no such language, leading the Court to conclude that the statutes did not contain an implied right of action. While citing Cannon with favor, the Court explicitly rejected the emphasis in Cannon and other prior cases on implying a private right in order to effectuate the purpose of the statute./362/

In 1982, Justice Stevens authored an opinion finding an implied statutory right of action to enforce the Commodity Exchange Act./363/ Stevens asserted that in earlier times, the common law supplied a remedy for an individual injured by the breach of a duty. Yet, he explained, the Court unanimously modified its approach in Cort v. Ash, due to the "increased complexity of federal legislation and the increased volume of federal litigation." Presently, the Court requires "more careful scrutiny of legislative intent" to imply a private right of action./364/ Because the Commodity Exchange Act was amended in 1974, before the change in the Court's approach in the 1975 Cort v. Ash case, the majority found that "Congress intended to preserve the preexisting remedy" of an implied right of action. The Court concluded that the provision of new remedies in 1974 was "intended to supplement rather than supplant the implied judicial remedy."/365/ The Court specifically rejected the argument that the implication of a right of action violates separation of powers, noting that judicial implication of a right turns on congressional intent./366/

A year later, the Court was asked to decide upon the standard of proof needed to prevail in a Title VI case, specifically whether proof of discriminatory intent was required to obtain compensatory relief./367/ The Court splintered, producing six separate opinions.  Nevertheless, seven Justices accepted that, under the reasoning of Cannon, there was an implied private right of action to enforce Title VI./368

The Court has never overruled Cannon or cases based on it. As a result, claims under Title VI and Title IX remain enforceable under an implied private right of action. The Rehabilitation Act adopts the remedies of Title VI, and thereby also utilizes an implied private right of action./369

Nevertheless, for statutes enacted after Congress was notified that the Court expected it to "specify" a cause of action, the Court has refused to permit enforcement of rights through an implied statutory cause of action./370/ Lower court cases finding an implied private right of action in such statutes are therefore extremely vulnerable to challenge.  For instance, the Fifth Circuit held in 1981 that language in the Housing and Community Development Act similar to the language of Title IX is enforceable under a private right of action./371/ That holding was explicitly rejected by several other courts, including the First Circuit./372/

Thus, by 2000, numerous cases held there was no implied private right of action to enforce federal statutes, other than Title IX, Title VI, and the Rehabilitation Act, for which an exception had been carved out by the Supreme Court. Even before Alexander v. Sandoval greatly limited private enforcement of regulations, scholars proclaimed that obtaining relief for violations of rights in federal statutes under an implied private right of action was "foreclosed."/373/

5.2.B.2. The Conflation of the Implied Private Right of Action with the Express Right of Action in Section 1983

In Wright v. City of Roanoke Redevelopment and Housing Authority,/374/ Justice O'Connor wrote a dissent on behalf of four Justices which introduced the idea that the Cort v. Ash test for an implied right of action should be utilized in determining whether a plaintiff may access the express right of action in 42 U.S.C. § 1983. She suggested that each specific provision of the statute, not the statute as a whole, be carefully scrutinized to "determine congressional intent to create enforceable rights."/375/ This analysis imports into the § 1983 analysis the second prong of the Cort v. Ash testa search for legislative intent to create a private right of action in a statute devoid of any express right to sue in federal court.

To the contrary, Justice Brennan subsequently argued in another 5-to-4 decision regarding § 1983 that an implied private right of action is completely different from the utilization of the express right of action in § 1983./376/ Rather, he asserted that the Section 1983 remedy is available unless there is clear evidence of legislative intent to take away this express right of action. However, after Justice Brennan left the Court, Justice O'Connor's vision became law. In Gonzaga University v. Doe, the Court held that evidence of congressional intent to create enforceable rights is a prerequisite to utilization of § 1983./377/ Gonzaga explicitly blurs the distinction between an implied right of action and the express right of action in § 1983./378/

5.2.B.3. Sandoval Limits Enforceability of Federal Regulations

Alexander v. Sandoval involved a challenge to the Alabama Department of Safety’s refusal to administer its driver’s examination in a language other than English./379/ The plaintiff was a Mexican immigrant who did not have the English skills necessary to take a written examination. She sued, arguing that the driver’s license rule violated the regulations implementing Title VI of the Civil Rights Act of 1964. Section 601 of Title VI forbids discrimination based on race or national origin in any program or activity receiving federal funds. Section 602 of the statute authorizes the federal government to promulgate regulations to implement Section 601. The regulations interpret national origin discrimination to include actions that did not intend to discriminate but had that effect because of factors having a disparate impact, such as an individual’s limited ability to speak English.

The Supreme Court in Sandoval found it “beyond dispute that private individuals may sue to enforce [Section] 601” of Title VI utilizing an implied private right of action./380/ However, the Court interpreted Section 601 as applying only to intentional discrimination.  The Court limited Cannon to its facts, in which intentional discrimination was alleged to violate Section 601. The "disparate impact" regulations were found to be beyond the scope of Section 601's prohibition on intentional discrimination, and therefore not enforceable under Section 601. The Court stated, “[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”/381/

The Court further rejected the plaintiffs' claim that Section 602, which authorizes regulations to implement Section 601, was enforceable utilizing an implied private right of action./382/ In analyzing the implied right of action issue, the Court found the existence or absence of “rights-creating language” to be critical to the inquiry./383/ Sandoval suggests that congressional intent to create private remedies is the determinative issue; that is, does the statute “display[] an intent to create not just a private right but also a private remedy?”/384/ Congressional intent is to be determined almost exclusively based on the text and structure of the statute. The Court expressed disdain for inferring remedies necessary to effectuate congressional purpose./385/ The Court made clear that the statute's text and structure must evince a “congressional intent to create new rights.”/386/

In future cases involving regulations, advocates are best advised to seek enforcement of a statute, rather than regulations promulgated pursuant to the statute. In Jackson v. Birmingham Board of Education, for example, the Supreme Court reversed the Eleventh Circuit’s holding that Sandoval precluded enforcement of a Title IX regulation prohibiting retaliation./387/ The Court held that Sandoval was irrelevant because such retaliation is prohibited by the statute’s text./388/

Courts of appeal interpreting Sandoval, in conjunction with Gonzaga, have reversed their prior caselaw and have held that "regulations alone cannot create rights enforceable through either an implied right of action or [Section] 1983.”/389/  Nevertheless, if a right is conferred through the statute, then the regulations are relevant to the scope of the right conferred by Congress./390/

Even for statutes with a private right of action, however, Sandoval places limits on the enforceability of accompanying regulations.  Refusing to enforce a regulation under the Americans with Disabilities Act, the Ninth Circuit stated that pursuant to Sandoval: "those regulations effectuating the statute's clear prohibitions or requirements are enforceable through the statute's private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable."/391/  Therefore, only regulations within the clear mandate of a statute with an express right of action remain enforceable and are not impacted by Sandoval./392/

5.2.C. The Preemption Claim

Like 42 U.S.C. § 1983, preemption is another vehicle for challenging state or local governmental activities under federal laws that do not contain an explicit right of action. Preemption is typically invoked by businesses trying to avoid state regulation, such as state consumer protection statutes./393/ But preemption claims are also useful to public interest advocates seeking to invalidate state or local laws that conflict with federal law.

Unlike Section 1983, preemption claims do not provide damages or attorney's fees./394/ However, preemption can be used to enforce statutory provisions that do not create “rights” enforceable under Section 1983, and to enforce regulations that are unenforceable through an express or implied statutory cause of action. Therefore, preemption claims provide an important alternative when Section 1983 is not available or is in question./395/

5.2.C.1. Types of Preemption

The preemption doctrine arises from the Supremacy Clause of the Constitution./396/ If the provisions of a state law are “inconsistent with an act of Congress, they are void, so far as that inconsistency extends.”/397/ Although preemption is most often used defensively, the Supreme Court has long entertained offensive preemption claims./398/

The three general categories of preemption are: (1) express (a federal statute explicitly overrides state law); (2) field (a federal law “occupies the field” and ousts even consistent state laws), and (3) conflict (state legislation is permissible but only if it does not conflict with federal law)./399/ All three categories are theoretically available to public interest advocates, but conflict preemption is most likely to be useful to enforce the statutes that protect low-income persons, such as the Medicaid Act or federal housing laws.

Conflict preemption encompasses both direct conflicts and situations where state law stands “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”/400/ Conflict preemption can occur even if federal and state laws have the same goal or if the federal statute gives states the primary authority over an area./401/

5.2.C.2. Jurisdiction and the Cause of Action

The Supreme Court has repeatedly upheld federal question jurisdiction over preemption claims without identifying the cause of action for such claims./402/ Indeed, the Court has rejected the suggestion that jurisdiction over a preemption claim is defeated if the statute does not contain an express private right of action.  In Shaw v. Delta Air Lines, the Court stated in a footnote:

It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.  A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve./403/

After finding jurisdiction in Shaw, the Court proceeded to rule on the merits.

In Verizon Maryland Incorporated v. Public Service Commission, a preemption case, the defendant argued that the plaintiffs did not have a cause of action under the Telecommunications Act and therefore there was no federal jurisdiction over the complaint. The Supreme Court unanimously reached the merits of the preemption claim, “express[ing] no opinion” whether there was a private cause of action to enforce the law./404/  Quoting an earlier case, the Court stated: “It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.”/405/  The Court explained that if the statute does not strip federal question jurisdiction and plaintiff’s preemption claim is not frivolous, then the district court has federal question jurisdiction to determine whether a state regulation is preempted by federal law, pursuant to the Supremacy Clause./406/

The Supreme Court subsequently reached the merits of two cases alleging that state laws were preempted by the federal Medicaid statute, without addressing the cause of action.  In Pharmaceutical Research and Manufacturers of America v. Walsh (PhRMA)/407/ Justice Thomas's concurrence suggested, although he did not explicitly conclude, that plaintiffs might have to meet the Gonzaga requirements for a cause of action in order to bring a claim under the Supremacy Clause for Spending Clause statutes./408/ Justice Scalia, writing separately, did not address the cause of action but similarly inferred that in his view, neither Section 1983 nor the Supremacy Clause may be invoked to challenge alleged state violations of federal law in Spending Clause cases./409/ The other seven Justices reached the merits of the preemption claim, split 4-to -3 on whether the state law was preempted, and completely ignored the concurrences of Justices Scalia and Thomas. By reaching the merits, seven Justices “assum[ed] sub silentio that the plaintiff had a right of action for its claim that the Medicaid statute preempted state law.”/410/

In the second recent Medicaid case, Arkansas Department of Health and Human Services v. Ahlborn, the Court unanimously held that state law conflicted with Medicaid law and was therefore unenforceable./411/ Ahlborn contains no discussion whatsoever of a cause of action or jurisdiction; it reaches the merits of the preemption claim without even mentioning the Supremacy Clause./412/

Commentators have concluded that “the rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision … is well-established.”/413/  The applicable cause of action to bring preemption claims is implied in the Supremacy Clause, just as causes of action are implied to enforce other constitutional provisions./414/

The courts of appeals have uniformly held that when proceeding under the Supremacy Clause to enforce a safety net statute, plaintiffs need not meet the requirements for a cause of action set forth in Gonzaga./415/  Indeed, for a preemption claim, there is no need for a statutory cause of action./416/ A claim that a federal law has preemptive force under the Supremacy Clause is distinct from a statutory claim to enforce the federal law, and therefore, the absence of a cause of action in the statute does not defeat the preemption claim./417/

Some courts of appeals have explicitly stated that there is an implied cause of action in the Supremacy Clause for a preemption claim./418/ Other courts of appeals have simply followed Verizon's lead and reached the merits of preemption claims, finding that there is federal question jurisdiction under 28 U.S.C. § 1331 without identifying the cause of action./419/

Many federal statutes that public interest advocates seek to enforce are passed under Congress’ authority under the Spending Clause. In the Section 1983 context, the Supreme Court has generally indicated reluctance about private enforcement of spending legislation./420/ That reluctance, however, does not extend to preemption cases. The Supreme Court has long held that Spending Clause legislation is specifically entitled to supremacy just like other federal legislation:

There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid./421/

The Supreme Court reiterated this principle recently in a Spending Clause case, noting that once a state chooses to take federal monies and participate in a federal program, the state “must comply with [the federal statute’s] mandates.”/422

The courts of appeal have also resoundingly rejected the argument that Spending Clause statutes have less force under the Supremacy Clause than other statutes./423/ Two circuits specifically noted that the concurrences of Justices Thomas and Scalia in Pharmaceutical Research and Manufacturers Association v. Walsh (PhRMA), which allude to the Supremacy Clause, have no precedential importance, since they did not command a majority of the Court./424/ Indeed, the concurrences of Justices Thomas and Scalia not only conflict with considerable Supreme Court precedent but also have no basis in the text of the Constitution./425/

5.2.C.3. Elements of a Preemption Claim

Certain federal laws can preempt various types of state action. Generally applicable only to state governmental officials or entities, preemption provides limited relief.

5.2.C.3.a. Federal Laws That Have Preemptive Force

The Supremacy Clause expressly gives the federal Constitution and federal statutes preemptive force. In addition, “a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.”/426/ Indeed, “[f]ederal regulations have no less pre-emptive effect than federal statutes.”/427/ Federal agency orders, and possibly other forms of agency action, can also preempt state or local action./428/ Therefore, preemption can be used to enforce regulations that are unenforceable under Section 1983 or an implied right of action./429/

In analyzing the preemptive effect of federal agency action, a “narrow focus on Congress’ intent … is misdirected,” because an agency’s ability to preempt “does not depend on express congressional authorization to displace state law.”/430/ Rather, the courts have applied traditional, deferential Chevron analysis to determine whether the agency has acted within the scope of its authority in issuing preemptive regulations./431/ Thus, agency action is treated quite differently here than in the context of implied rights of action or Section 1983, where Congress’ intent to create rights or a right of action must be unambiguously shown in the statute itself./432/

5.2.C.3.b. State Action that Can Be Preempted

State or local laws or regulations are clearly subject to federal preemption. The Supreme Court has also applied preemption to invalidate state or local administrative orders./433/ Preemption challenges to other forms of state action are less common. The Supreme Court and lower courts have on occasion sustained preemption suits against official state policies, especially if they are codified in writing./434/ Policies may also be challenged by seeking to invalidate a law or regulation to the extent that it is interpreted to permit or authorize the challenged state action or policy./435/

However, advocates should shy away from asserting preemption challenges based on unwritten policies, practices, customs, usage, inaction or isolated violations, unless there is clear written evidence of a policy./436/ The Fifth Circuit rejected a Supremacy Clause claim alleging that the failure to set adequate reimbursement rates violated the reasonable promptness provision of the Medicaid statute./437/ The court stated that the plaintiff "has no viable claim under the Supremacy Clause because it failed to identify any state law or regulation with which the Reasonable Promptness Provision conflicts and therefore preempts."/438

One alternative way of challenging an unwritten policy is to challenge an agency determination or order that reflects that policy. For example, if a state Medicaid agency or public housing authority denies an individual’s benefits based on an unwritten policy, the order could be invalidated as in conflict with and preempted by federal law. Of course, in those situations the individual may also be able to administratively appeal the determination directly on the same grounds.

In the telecommunications context, businesses have successfully utilized preemption to challenge state agency determinations.  The Tenth Circuit held that there was federal question jurisdiction to decide whether a state agency determination was preempted by federal telecommunications law./439/ Similarly, the Eighth Circuit held that "district courts have jurisdiction to determine whether a state administrative agency correctly interprets federal law, in this case the Telecommunications Act and the FCC regulations interpreting the Act."/440/ These decisions are fully applicable to cases brought under safety net and civil rights statutes. 

5.2.C.3.c. Defendants Subject to Preemption

Like Section 1983, preemption generally applies only to governmental officials or entities, although it might be used in isolated situations in actions between private parties. In the defensive context, preemption issues routinely arise in disputes between private parties when the defendant alleges that federal law preempts the plaintiff’s state law cause of action. Private cases could arise in which the defendant justifies its conduct based on a state law or regulation that the plaintiff asserts conflicts with federal law./441/

5.2.C.3.d. Relief Available

A drawback of preemption is that it only provides injunctive and declaratory relief and not damages or attorney’s fees. Section 1983, of course, explicitly provides for damages,/442/ but there is no source of authority to award damages under the Supremacy Clause./443/ Bivens is the only context in which the Supreme Court has implied a damages remedy under the Constitution, and, in recent years, the Court has been extremely reluctant to extend the remedy./444/ Moreover, the general “American rule” is that parties bear their own litigation costs./445/ For Section 1983 actions, 42 U.S.C. § 1988 specifically permits attorney’s fees. There is no analogous authority to award fees in preemption claims under the Supremacy Clause./446/

These limitations, however, may make preemption claims less vulnerable to attack. Although the Supreme Court has restricted the use of implied rights of action, Section 1983, and Bivens claims, those claims are often controversial precisely because they permit damages and attorney’s fees./447/ In a recent decision declining to extend Bivens, for example, the Court made clear that “unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”/448/ Thus, the preemption claim’s weaknesslack of damagesmay also be its strength.

With respect to injunctive relief, the typical relief in a preemption case is an order invalidating the state law or regulation and enjoining its enforcement./449/ If plaintiffs do not wish to completely eliminate the state law, it can be invalidated “insofar as it violates the federal statute.”/450/ Accordingly, advocates should attempt to phrase relief in typical, negative, preemption terms and use caution when seeking affirmative injunctions. Nevertheless, the power to invalidate a law, regulation, or administrative order may in the end give the plaintiffs the affirmative relief they seek. For example, when the Supreme Court invalidates a state utility commission rate order, the utility is not left without rates. Rather, the case is remanded and the state agency will reform its order consistent with federal law./451/ Advocates should be careful to phrase their pleadings in classic preemption terms so that courts will be comfortable using this line of cases in public interest cases.

5.2.C.4. The Relationship Between 42 U.S.C. Section 1983 and Preemption Claims

Defendants attempting to avoid preemption claims often cite the Supreme Court’s holdings in Golden State Transit Corporation v. City of Los Angeles (Golden State II) and Chapman v. Houston Welfare Rights Organization that “the Supremacy Clause, of its own force, does not create rights enforceable under [Section] 1983” and “is not a source of any federal rights.”/452/ Defendants also invoke the statement from Golden State II, that “a Supremacy Clause claim based on a statutory violation is enforceable under [Section] 1983 only when the statute creates ‘rights, privileges, or immunities’ in the particular plaintiff.”/453/

However, these statements merely indicate that the Supremacy Clause cannot be the source of the constitutional “right” protected under Section 1983 or its related jurisdictional statute./454/ In Chapman, the plaintiffs were attempting to fit a preemption claim within the civil rights jurisdictional statute in order to avoid the prior amount-in-controversy requirement for federal question jurisdiction./455/ In Golden State II, the plaintiffs argued that their preemption claim was also a Section 1983 claim that entitled them to attorney’s fees. The holdings in those cases say nothing about the scope of the Supremacy Clause itself or of an independent preemption claim. The preemption claim is entirely distinct from Section 1983, not a different way of using that statute. Therefore, cases interpreting Section 1983 or examining its requirements are not applicable to preemption claims./456/

A federal statute may be enforced through preemption even if the statute does not create individual “rights” within the meaning of Section 1983./457/ The text of Section 1983 protects only “rights, privileges or immunities,” and courts, therefore, must consider whether Congress intended a statute to create a “right” for that remedy. Preemption claims, however, arise from the Supremacy Clause, which has a different purpose and contains no similar language: “In this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”/458/ Preemption under the Supremacy Clause “concerns the federal structure of the Nation rather than the securing of rights, privileges, and immunities to individuals.”/459/

The Supreme Court has made it clear that preemption claims may be brought even when the plaintiff does not have a claim under Section 1983. In Golden State II, the majority observed: “Given the variety of situations in which preemption claims may be asserted, in state and federal court, it would obviously be incorrect to assume that a federal right of action pursuant to Section 1983 exists every time a federal rule of law pre-empts state regulatory authority.”/460/

The dissenters made the point even more clearly. Although they disagreed with the majority about the plaintiff’s Section 1983 claim, Justice Kennedy wrote:

By concluding that [plaintiff] Golden State may not obtain relief under [Section] 1983, we would not leave the company without a remedy. Despite what one might think from the increase of litigation under the statute in recent years, [Section] 1983 does not provide the exclusive relief that the federal courts have to offer…. [P]laintiffs may vindicate … pre-emption claims by seeking declaratory and equitable relief in the federal district courts through their powers under federal jurisdictional statutes. These statutes do not limit jurisdiction to those who can show the deprivation of a right, privilege, or immunity secured by federal law within the meaning of [Section] 1983./461/

The Supreme Court has also entertained numerous preemption claims on the merits under statutes that do not confer “rights” on plaintiffs enforceable through Section 1983. For example, in Pharmaceutical Research and Manufacturers Association v. Walsh (PhRMA) seven justices considered the plaintiffs’ preemption claim on the meritsand three of the conservative justices would have ruled in their favoreven though the Medicaid Act almost certainly does not give drug companies a right enforceable under Section 1983 to sell their drugs to Medicaid recipients./462/ Indeed, the First Circuit’s opinion in Walsh, which the Supreme Court affirmed, explicitly held that the plaintiff was not attempting “to enforce rights under the Medicaid Statute … but rather a preemption-based challenge under the Supremacy Clause…. [R]egardless of whether the Medicaid statute’s relevant provisions were designed to benefit PhRMA, PhRMA can invoke the statute’s preemptive force.”/463/

Lower courts have expressly concluded that plaintiffs may pursue preemption claims absent a statutory right of action under Section 1983 or a claim directly under the federal statute at issue./464/ As the Third Circuit stated:

We know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption./465/

The Fifth and Seventh Circuits have expressly held that the requirements for "rights-creating language" in Gonzaga are inapplicable to a preemption claim./466/  Several circuits have similarly held, subsequent to Gonzaga, that statutory provisions which do not meet the requirements for a Section 1983 cause of action may be enforced via preemption./467/    

Policy reasons also underlie courts’ willingness to recognize preemption claims while rejecting claims under § 1983 or under the statute directly. Because damages and attorneys’ fees are not available, courts have less concern about imposing preemption claims on state actors. These policy concerns are related to those that led the Supreme Court to adopt the Ex Parte Young exception to sovereign immunity, /468/ allowing injunctive relief against state officers even when damages directly against the state are not available: “the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”/469/

5.2.C.5. Congressional Intent and the Presumption Against Preemption

Although the inquiry is different, Congressional intent is relevant to preemption claims, as it is to Section 1983 claims.  Specifically, for a preemption claim, the question is what does the federal statute mean and does state law interfere with it, not whether Congress intended to create an enforceable right. Preemption claims thus have advantages over Section 1983 in an analysis of congressional intent, because they may be used to challenge state laws that conflict with the broader purposes of a federal statute and not simply its specific provisions. Nevertheless, the presumption against preemption cautions advocates against bringing preemption claims based on vague statutory provisions.

In the Section 1983 context, plaintiffs may not claim rights in the statute “as an undifferentiated whole,” but instead must focus on “the provision in question.”/470/ Claims based on Congress’ overall purpose, as expressed in the statute’s introductory provisions, generally fail./471/ In the preemption context, however, the Court examines the broader question of whether a state law presents an obstacle to federal objectives.  The Court explained:

What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: “For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power.”/472/

That is, congressional intent is determined from the entire “undifferentiated” statute, and preemption may be inferred from overall purposes and not simply from specific statutory language./473/  Thus, preemption claims allow plaintiffs to go beyond narrow statutory provisions and to show that a state law frustrates “the full purposes and objectives of Congress.”/474/

Litigants should be careful not to base preemption claims solely on vague statutory language or policies because the Supreme Court has at times applied a presumption against preemption./475/ When the federal law does not pose a clear conflict with state law, courts “have a duty to accept the reading that disfavors pre-emption.”/476/ The Supreme Court stated, “[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.”/477/ Allegedly preemptive provisions must be "fairly but narrowly construed."/478

However, the Supreme Court has not consistently applied this presumption against preemption. In some recent cases, the presumption against preemption has been ignored by the majority of the Court and cited only by dissenters./479/ For example, preemption has been embraced by a majority of the Roberts Court in some cases to insulate businesses from suits under state tort actions and consumer protection statutes./480/ The Court's reliance on preemption in the business context has accordingly rendered court access under the Supremacy Clause less vulnerable to challenge for public interest litigants as well.

5.2.C.6. Practice Tips

The key to a successful preemption claim is to phrase it in classic preemption terms with which courts are familiar. Advocates should strenuously avoid using language reminiscent of Section 1983 or implied right of action claims. The claim should be described as “preemption” rather than “Supremacy Clause”even though they are the same thing. Courts hear preemption claims every day, without thinking twice about the source of the cause of action. An “implied cause of action under the Supremacy Clause,” by contrast, sounds like a Bivens claim or a statutory implied cause of actiondoctrines that have met with significantly less favor in the Supreme Court in recent years.

For example, this model claim follows the Supreme Court’s classic definition of conflict preemption:

First Cause of Action
Preemption by Federal Law 45 U.S.C. § 678

1. State Law 123 conflicts with Federal Law 45 U.S.C. § 678 and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in that it allows/prohibits _________ whereas federal law prohibits/allows ______. Therefore, State Law 123 is preempted by Federal Law 42 U.S.C. § 456 and is invalid pursuant to the Supremacy Clause of the United States Constitution.

Discussions of the claim should use preemption terminology. Talk about how the state law “frustrates,” “conflicts with,” “poses an obstacle to,” or “is preempted by” the federal law or “is invalid.” Avoid using terms more common to Section 1983, such as an argument that the state has “violated” federal law or that the plaintiffs’ “rights” have been violated. Relief should be phrased in negative terms, seeking to invalidate the preempted state law, rather than in affirmative terms, asking the state to do something. Focus on the particular state law, regulation, written policy, or administrative order that is being preempted, rather than on the state’s general actions or inactions.

Ultimately, the core principle of a preemption claim pursuant to the Supremacy Clause is to focus on finding a state or local law, regulation, official written policy, or agency order, and argue that is invalid because it conflicts with a federal statute or frustrates Congress’ objectives. The court can then invalidate that law to the extent that it conflicts with federal law and enjoin the state or local government from implementing it.

______________________________________________________________________________________________________



298. Anthony J. Belia, Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 784, 793, 797 (2004).  Part of the impetus for abolishing the forms of proceeding was that they were perceived as inadequate to provide remedies to injured parties.

299. Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access for Safety Net Statutes, 10 Loy. J. Pub. Int. L. 27, 32 (2009).

300. John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L. J. 2513, 2520-21 (1998).

301. See, e.g., J.I. Case Company v. Borak, 377 U.S. 426 (1964).

302. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009).

303. Bobroff, Section 1983 and Preemption, supra note 299.

304. Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002).

305. The term “Bivens action” refers to the case in which the Supreme Court first held that the federal courts could create such a cause of action. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

306. These statutes are discussed in Chapters 2.5.C. and 2.5.D. of this MANUAL.

307. Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

308. Procedurally, reasoning by analogy from § 1983 actions, all courts considering the issue have held that state personal injury statutes of limitation should govern Bivens. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996); Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004); Papa v. United States, 281 F.3d 1004, 1009 n.11 (9th Cir. 2002); King v. One Unknown Federal Corrections Officer, 201 F.3d 910, 913 (7th Cir. 2000); Polanco v. U.S. Drug Enforcement Administration, 158 F.3d 647, 653 (2d Cir. 1998); Sanchez v. United States, 49 F.3d 1329, 1330 (8th Cir. 1995); Napier v. Thirty or More Unidentified Federal Agents, Employees, or Officers, 855 F.2d 1080, 1088 n.3 (3d Cir. 1988). Additionally, there is currently no express or implied statutory authorization for an award of attorney's fees to prevailing plaintiffs in Bivens actions and the Supreme Court has expressly declined to rule on the question. Bush v. Lucas, 462 U.S. 367, 372 n.9 (1983).

309. 28 U.S.C. § 1442(a)(1); McCarthy v. Madigan, 503 U.S. 140, 150 (1992).

310. The determination that a plaintiff has a Bivens cause of action does not necessarily mean that the plaintiff may recover damages in the case. The additional, and distinct, question of whether the defendants are entitled to absolute or qualified immunity must also be adjudicated. Government officials performing discretionary functions are generally granted a qualified immunity and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity analysis is the same under either a Bivens or a § 1983 cause of action. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999); Graham v. Connor, 490 U.S. 386, 394 n.9 (1989); Malley v. Briggs, 475 U.S. 335, 340 n.2 (1986). For a discussion of the circumstances in which government officials sued in their individual capacities are entitled to either absolute or qualified immunity, see Chapters 8.2.A. and 8.2.B. of this MANUAL.

311. The Federal Tort Claims Act was amended in 1974 to provide a remedy for intentional torts committed by federal law enforcement officials. See 28 U.S.C. § 2680(h).

312. Bivens, 403 U.S. at 391-92, 394-95.

313. Davis v. Passman, 442 U.S. 228 (1979).

314. Id. at 230-31 n.3.

315. Id. at 245, 247.

316. Id. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).

317. Carlson v. Green, 446 U.S. 14 (1980). In Hui v. Castaneda, 130 S. Ct. 1845 (2010), the Supreme Court distinguished Carlson and held that 42 U.S.C. § 233(a), a provision in the Public Health Service Act, precludes Bivens claims against individual Public Health Service employees and instead requires that the United States be substituted and a case brought under the Federal Tort Claims Act.

318. Id. at 19-20. The Supreme Court relied on language in the Senate Report on the 1974 Federal Tort Claims Act Amendments, showing that “Congress views [the Act] and Bivens as parallel, complementary causes of action.” The Court also noted that in several respects the Bivens remedy was more effective. Unlike a Federal Tort Claims Act suit, a Bivens suit allows recovery against individual officers (thus more effectively deterring unconstitutional conduct), allows punitive damages, can be tried before a jury, and is not dependent on “the vagaries” of state tort statutes and doctrines. Id. at 19-23. The 1988 Amendment to the Federal Tort Claim Act’s exclusivity-of-remedy provision, 28 U.S.C. § 2679(b)(1)-(2), made clear that Congress had maintained its position that the Act is not the exclusive remedy for a constitutional tort, and thus that Congress declined to overturn Bivens, Davis, and Carlson.

319. Bush v. Lucas, 462 U.S. 367 (1983).

320. Id. at 388.

321. The Court deferred to Congress’ greater familiarity with the appropriate remedial scheme as reflected in the long history of legislative management of the civil service system. The Supreme Court took a hands-off approach, even though Congress had not stated that it considered the statutory civil service remedies to be exclusive, and even though the Court assumed that a Bivens action would provide greater relief. See Bush, 462 U.S. at 378.

322. Id.

323. Chappell v. Wallace, 462 U.S. 296 (1983).

324. Id. at 302, 304.

325. United States v. Stanley, 483 U.S. 669, 684 (1987) (quoting Feres v. United States, 340 U.S. 135, 146 (1950)). 

326. Schweiker v. Chilicky, 487 U.S. 412, 423-29 (1988).

327. Id. at 415-16 (“Finding that benefits were too often being improperly terminated by state agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted temporary emergency legislation in 1983.”).

328. Id. at 423.

329. Simpson v. McCarthy, 741 F. Supp. 95, 97 (W.D. Pa. 1990) (referring to Carlson v. Green, 446 U.S. 14, 18 (1980).

330. Correctional Services Corporation v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). 

331. J.I. Case Co. v. Borak, 377 U.S. 426 (1964).

332. Malesko, 534 U.S. at 67 n.3 (quoting Alexander v. Sandoval, 532 U.S. 275, 287 (2001)).

333. Id. at 68, 70.

334. Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471 (1994).

335. Id. at 484-85.

336. Id. at 474.

337. Minneci v. Pollard, 132 S. Ct. 617 (2012).

338. Id. at 624.

339. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1947 (2009) (quoting Correctional Services Corporation v. Malesko, 534 U.S. 61, 68 (2001)).

340. See Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (no Bivens remedy for federal employee asserting Fifth Amendment violation in light of the comprehensiveness of the Civil Service Reform Act); Thompson v. Pope, 397 F. Supp. 2d 28 (D.D.C. 2005) (no Bivens remedy for foreign service officer asserting violations of the Fourth and Fifth Amendments in light of the comprehensiveness of the Foreign Service Act);

341. See, e.g., Christopher v. Harbury, 536 U.S. 403 (2002) (Bivens claim under the Fifth Amendment for alleged denial of access to the courts rejected).    

342. Wilkie v. Robbins, 551 U.S. 537, 541, 548 (2007).

343. Id. at 551-54.

344. Id. at 550 (quoting Bush v. Lucas, 462 U.S. 367 , 378 (1983).

345. Id. at 562.

346. See Wilkie, 551 U.S. 537 (1983) (declining to extend Bivens remedy to a series of complex complaints against actions of federal actors, including pressure to dispose of property interests). See also Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (no Bivens claim in extraordinary rendition case), cert. denied, 130 S. Ct. 3409 (2010); Hudson Valley Black Press v. Internal Revenue Service, 409 F.3d 106 (2nd Cir. 2005) (refusing a Bivens remedy for a Fourth Amendment violation by Internal Revenue Service employees in light of comprehensiveness of Internal Revenue Service taxpayer remedies, even though no remedy existed for plaintiff).

347. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (both Bivens and § 1983 allow a plaintiff to seek damages from government officials who violate plaintiff’s Fourth Amendment rights); McCarthy v. Madigan, 503 U.S. 140, 152-56 (1992) (upholding plaintiff’s Bivens claim even though he had failed to exhaust alternative administrative remedies that did not allow for damages).

348. The Court first assumed a Bivens claim under the First Amendment in Bush, 462 U.S. at 372-73.

349. Hartman v. Moore, 547 U.S. 250 (2006).

350. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009).

351. See, e.g., Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987) (allegation that Federal Bureau of Investigation agents impermissibly curbed plaintiff’s protected speech claim, properly cognizable as a Bivens-type action under the First Amendment); Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986) (reversing dismissal of Bivens claim by federal employee who allegedly suffered harassment by supervisors for exercising his First Amendment rights; and distinguishing Bush on grounds that remedial scheme is less comprehensive than that of the Civil Service Reform Act, and remedies are less meaningful).

352. Alexander v. Sandoval, 532 U.S. 275 (2001).

353. Sullivan v. Little Hunting Park, 396 U.S. 229, 238 (1969); Allen v. State Board of Elections, 393 U.S. 544, 556-57 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414-415, and 414 n.13 (1969).

354. Cort v. Ash, 422 U.S. 66 (1975).

355. Id. at 78. 

356. Cannon v. University of Chicago, 441 U.S. 677, 709 (1979).

357. Id. at 696-68.

358. Id. at 703. 

359. Id. at 717.

360. Transamerica Mortgage Advisors, Incorporated v. Lewis, 444 U.S. 11, 24 (1979); Touche Ross and Company v. Redington, 442 U.S. 560, 575-76 (1979).

361. Transamerica, 444 U.S. at 24.

362. Id. at 15-16. The dissent argued on behalf of four Justices that "courts may provide private litigants exercising implied rights of action whatever relief is consistent with the congressional purpose." Id. at 30 (White, J. dissenting). But the majority clearly rejected the dissent's approach of focusing on overall congressional purpose.

363. Merrill Lynch, Pierce, Fenner and Smith v. Curran, 456 U.S. 353 (1982).

364. Id. at 377.

365. Id. at 384-85. See also Herman and MacLean v. Huddleston, 459 U.S. 375, 386-87 (1983) (express remedy does not preclude enforcement of another statute which had previously been held enforceable under an implied private right of action).

366. Id. at 375-76.  

367. Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983).

368. Id. at 607, n.27.

369. Rehabilitation Act, 29 U.S.C. § 794a(a)(2). See Lane v. Peña, 518 U.S. 187, 191-92 (1996).

370. See Virginia Bankshares, Incorporated v. Sandberg, 501 U.S. 1083, 1102 (1991); Merrell Dow Pharmaceuticals Incorporated v. Thompson, 478 U.S. 804, 812, n. 9 (1986) (collecting cases).

371. Montgomery Improvement Association v. U.S. Department of Housing and Urban Development, 645 F.2d 291, 295 (5th Cir. 1981).

372. Latinos Unidos de Chelsea En Accion (Lucha) v. Secretary of Housing and Urban Development, 799 F.2d 774, 795 (1st Cir. 1986).

373. Lisa E. Key, Private Enforcement of Federal Funding Conditions under 1983: the Supreme Court’s Failure to Adhere to the Doctrine of Separation of Powers, 29 U.C. Davis L. Rev. 283, 286 (1996). See also Donald H. Zeigler, Rights, Rights of Action, and Remedies: An Integrated Approach, 76 Wash. L. Rev. 67, 91 (2001).

374. Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987).

375. Id. at 433 (O'Connor, J. dissenting). Prior to Justice O'Connor's Wright dissent, Justices Powell and Rehnquist had objected to enforcement of civil rights and safety net statutes under § 1983 on policy grounds, arguing that these cases were an undue burden on the state. Bobroff, Section 1983 and Preemption, supra note 299, at 39-42.

376. Wilder v. Virginia Hospital Association, 496 U.S. 498, 508 n.9 (1990).

377. Gonzaga University v. Doe, 536 U.S. 273 (2002) (finding no right to suit under § 1983 where plaintiff alleged a violation of the Federal Educational Right to Privacy Act, the federal statute protecting the privacy of educational records).

378. Id. at 284-85. 

379. Alexander v. Sandoval, 532 U.S. 275 (2001).

380. Id. at 280.

381. Id. at 291. 

382. Id. at 290-91.

383. Id. at 288.

384. Id. at 286.

385. Id. at 287-88.

386. Id. at 289.

387. Jackson v. Birmingham Board of Education, 544 U.S. 167 (2004).

388. Id. at 178. Cf. Rolland v. Romney, 318 F.3d 42, 52-53 (1st Cir. 2003) (relying on same Alexander v. Sandoval, 532 U.S. 275 (2001) language and finding private right of action under § 1983 to enforce regulations interpreting the Nursing Home Reform Amendments, 42 U.S.C. § 1396r, based on “rights-creating language” contained in statute).

389. Price v. City of Stockton, 390 F.3d 1105, 1112 n.6 (9th Cir. 2004); see Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006); Save Our Valley v. Sound Transit, 335 F.3d 932, 943 (9th Cir. 2003). See also South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771, 784 (3d Cir. 2001) (finding disparate impact regulation unenforceable under § 1983 based on Sandoval; decided before Gonzaga). Two circuits had held that regulations alone could not be enforced under § 1983 prior to Sandoval. Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987).

390. Price, 390 F.3d at 1112 n.6. 

391Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009).

392. Ability Center of Greater Toledo v. Sandusky, 385 F.3d 901, 906 (6th Cir. 2004) (“if the regulation simply effectuates the express mandates of the controlling statute, then the regulation may be enforced via the private cause of action available under that statute”); Chaffin v. Kansas State Fair Board, 348 F.3d 850, 858 (10th Cir. 2003) (distinguishing Sandoval on this basis and permitting enforcement of Americans with Disabilities Act regulations and guidelines through a private action).

393. See, e.g., Riegel v. Medtronic, Incorporated, 552 U.S. 312 (2008).  In two recent cases, Justice Stevens authored decisions for a 5-to-4 majority that included Justice Kennedy, limiting federal preemption of state consumer protection laws and reestablishing the presumption against preemption. Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187 (2009); Altria Group, Incorporated v. Good, 555 U.S. 70, 129 S. Ct. 538 (2008).

394. See Loyal Tire and Auto Center, Incorporated v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed,” but holding that there is no statutory right of action under § 1983 and therefore no fee award); Qwest Corporation v. City of Santa Fe, 380 F.3d 1258, 1275 (10th Cir. 2004) (the plaintiff lost under the § 1983 claim, but partly prevailed under preemption, and claims for attorneys fees under 42 U.S.C. § 1988 were summarily dismissed); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987) (“preemption of state law under the Supremacy Clause-being grounded not on individual rights but instead on considerations of power-will not support an action under § 1983, and will not, therefore, support a claim for attorneys' fees under § 1988”).

395. See generally, Bobroff, Section 1983 and Preemptionsupra note 299.

396. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. “ U.S. Const. art. VI.

397. Gibbons v. Ogden, 22 U.S. 1, 31 (1824).

398. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941).

399. See Lorillard Tobacco Company v. Reilly, 533 U.S. 525, 541 (2001); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000).

400. Crosby, 530 U.S. at 373 (quoting Hines, 312 U.S. at 67).

401. See, e.g., Gade v. National Solid Wastes Management Association, 505 U.S. 88, 103 (1992); New Center Pipeline Corporation v. State Corp. Commission, 489 U.S. 493, 515 n.12 (1989).

402. See David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 366 (2004) (Supreme Court repeatedly "reached the merits of plaintiffs’ claims without considering whether the allegedly preemptive federal statute accorded plaintiffs a private right of action,” either directly under the statute or through Section 1983).

403. Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (citations omitted). See also Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002).

404. Verizon, 535 U.S. at 642.

405. Id. at 642-43.

406. Id. at 643-4.

407. Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003).

408. Id. at 683 (Thomas, J., concurring).  For a detailed discussion of Justice Thomas's concurrence, see Bobroff, Section 1983 and Preemption, supra note 299, at 76-78.

409. Id. at 675 (Scalia, J., concurring).  For a detailed discussion of Justice Scalia's concurrence, see Bobroff, Section 1983 and Preemption, supra note 299, at 78-79.

410. Sloss, supra note 402, at 374. 

411. Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006).

412. The Court’s holding that Arkansas law is unenforceable because it conflicts with the federal Medicaid Act is a preemption holding, although the Court did not use that term. The Court affirmed the Eighth Circuit, which did frame its discussion in terms of preemptionagain, without discussing or questioning the cause of action. See Ahlborn v. Arkansas Department of Health and Human Services, 397 F.3d 620 (8th Cir. 2005), aff’d, 547 U.S. 268.

413. Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System, 903 (5th ed. 2003); 13D Charles Alan Wright, et al., Federal Practice & Procedure § 3566 (3d ed. 2009) (concluding that “the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws”).

414. Sloss, supra note 402, at 363 n.36; Michael G. Collins, “Economic Rights,” Implied Constitutional Actions, and the Scope of Section 1983, 77 Geo. L. J. 1493, 1510 (1989).

415. See Bobroff, Section 1983 and Preemption, supra note 299, at 69-70.

416. Qwest Corporation v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004). Accord Puerto Rico Telephone Company v. Municipality of Guayanilla, 450 F.3d 9, 14-15 (1st Cir. 2006); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Bud Antle, Incorporated v. Barbosa, 45 F.3d 1261, 1269 (9th Cir. 1994).

417. Burgio and Campofelice, Incorporated v. New York State Department of Labor, 107 F.3d 1000, 1006-07 (2d Cir. 1997); Wright Electric, Incorporated v. Minnesota State Board of Electricity, 322 F.3d 1025, 1028 (8th Cir. 2003).

418. See, e.g., Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 56-57 (1st Cir. 2005); Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 & n.8 (1st Cir. 2004). See also, pre-Verizon cases, Joseph A. v. Ingram, 275 F.3d 1253, 1265 (10th Cir. 2002); Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001), aff’d sub nom Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003); Burgio and Compofelice, Incorporated v. New York State Department of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997); Guaranty National Insurance Company v. Gates, 916 F.2d 508, 512 (9th Cir. 1990).

419. See, e.g., Independent Living Center of Southern California v. Shewry, 543 F.3d 1050, 1055-56 (9th Cir. 2008), cert denied, 129 S. Ct. 2828 (2009) (stating that the Supreme Court “has consistently assumedwithout commentthat the Supremacy Clause provides a cause of action to enjoin implementation of allegedly unlawful state legislation”); Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (reaching merits of preemption claim without addressing cause of action); Qwest Corporation v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004) (since preemption claim not frivolous, court had federal question jurisdiction); Verizon Maryland, Incorporated v. Global Naps, Incorporated, 377 F.3d 355, 369 (4th Cir. 2004) ("Because ... there is federal question jurisdiction over this claim under 28 U.S.C. § 1331, we need not inquire into whether [the federal statute] provides a cause of action"); BellSouth Telecommunications, Incorporated v. Mcimetro Access Transmission Services, Incorporated, 317 F.3d 1270, 1278 (11th Cir. 2003) (en banc) (“[f]ederal courts must resolve the question of whether a public service commission’s order violates federal law and any other federal question").

420. See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 279-80 (2002).

421. King v. Smith, 392 U.S. 309, 333 n.34; accord Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295 (1958).

422. Winkelman v. Parma City School District, 550 U.S. 516, 519 (2007).

423. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-32 (5th Cir. 2005); Westside Mothers v. Haveman, 289 F.3d 852, 858-60 (6th Cir. 2002), cert. denied 537 U.S. 1045 (2002); Missouri Child Care Association v. Cross, 294 F.3d 1034, 1040-41 (8th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 188-89 (4th Cir. 2002). See also Rochelle Bobroff, Ex Parte Young as a Tool to Enforce Safety Net and Civil Rights Statutes, 40 Univ. of Toledo L. Rev. 819, 838 (2009).

424. Planned Parenthood, 403 F.3d at 332 n.34; Pharmaceutical Research and Manufacturers of America v. Thompson, 362 F.3d 817, 819 n.3 (D.C. Cir. 2004).

425. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345, 392-93 (2008).  See also, Bobroff, Section 1983 and Preemption, supra note 299, at 77.

426. Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 369 (1986).

427. Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 153-54 (1982); accord Capital Cities Cable, Incorporated v. Crisp, 467 U.S. 691, 699-700 (1984).

428. See, e.g., Entergy Louisiana, Incorporated v. Louisiana Public Services Commission, 539 U.S. 39, 47-50 (2003); Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 648 (2002);  Elizabeth Blackwell Health for Women v. Knoll, 61 F.3d 170, 181-82 (3d Cir. 1995) (federal Medicaid Bureau Director’s letter interpreting Medicaid Act).

429. See, e.g., Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). Indeed, the Title VI regulation in Alexander v. Sandoval, 532 U.S. 275 (2001), that could not be enforced through an implied right of action should have been enforceable through preemption.

430. Fidelity Federation Savings and Loan Corporation, 458 U.S. at 154; accord City of New York v. Federal Communications Commission, 486 U.S. 57, 63-64 (1988).

431. New York v. Federal Energy Regulatory Commission, 535 U.S. 1, 15-16, 18 (2002) (citing Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 842-843 (1984)); City of New York, 486 U.S. at 63; Pharmaceutical Research and Manufacturers of America v. Thompson, 362 F.3d 817, 822 (D.C. Cir. 2004) (Medicaid Act). Although, as discussed below, there is a presumption against preemption, the presumption only applies to determining whether the state law conflicts with the federal regulation, not to determining whether the federal agency had authority to preempt. See New York v. Federal Energy Regulatory Commission, 535 U.S. at 17-18.

432. See Sandoval, 532 U.S. 275; Gonzaga, 536 U.S. 273, 283, 284 n.3 (2002).

433. See, e.g., Entergy Louisiana, 539 U.S. 39; Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002); Nash v. Florida Industrial Commission, 389 U.S. 235 (1967).

434. Livadas v. Bradshaw, 512 U.S. 107 (1994) (state policy not to enforce state labor law); see also id. at 119 (characterizing Nash v. Florida Industrial Commission, 389 U.S. 235 (1967), as “holding pre-empted [a state] administrative policy interpreting presumably valid state unemployment insurance law”); League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 827-28 (N.D. Ohio) (state directive); Equal Access Education v. Merten, 305 F. Supp. 2d 585, 601 n.14 (E.D. Va. 2004) (noting that a state attorney general policy memorandum “is subject to the same analysis as a statute”) (citing Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999)).

435. See, e.g., Nash, 389 U.S. 235.

436. In Livadas, 512 U.S. 107, the plaintiff challenged the state’s inaction: its refusal to act on the employee’s unfair labor practice complaint. However, the state’s policy of refusing to enforce state labor law when the employee was covered by a union arbitration agreement was undisputed and was reflected in writing in a letter that the state sent to the plaintiff. Moreover, the plaintiff sought typical preemption relief: an order invalidating the policy.

437. Equal Access for El Paso v. Hawkins, 562 F.3d 724 (5th Cir. 2009).

438. Id. at 730.

439. Qwest Corp. v. Public Utilities Communication of Colorado, 479 F.3d 1184, 1191 (10th Cir. 2007).

440. Rural Iowa Independent Telephone Association v. Iowa Utilities Board, 362 F.3d 1027, 1030 (8th Cir. 2004).

441. See Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 113-14 (1989) (Kennedy, J., dissenting) (noting that a litigant has standing to contend that federal supremacy “requires a particular outcome in a dispute, and this is so whether the dispute is between individual parties … or the dispute involves a State or its subdivisions”) (citing cases); compare Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (finding state action in § 1983 suit between private parties).

442. See 42 U.S.C. § 1983 (providing liability “in an action at law”).

443. See Golden State Transit Corporation v. City of Los Angeles, 857 F.2d 631, 636 (9th Cir. 1988), rev’d on other grounds, 493 U.S. 103 (1989). The Supreme Court’s decision on the § 1983 claim in Golden State implicitly assumes that fees could only be obtained through § 1983, not through the preemption claim that the Court had earlier upheld.

444. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); see, e.g., Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

445. See Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240 (1975).

446. See Loyal Tire and Auto Center, Incorporated v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed,” but holding that there is no statutory right of action under § 1983 and therefore no fee award); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987) (“preemption of state law under the Supremacy Clause-being grounded not on individual rights but instead on considerations of power-will not support an action under § 1983, and will not, therefore, support a claim for attorneys' fees under § 1988”); Qwest Communications Corporation v. City of Greensboro, 440 F. Supp. 2d 480, 485 (M.D.N.C. 2006) (“the practical effect of a finding … that Plaintiff has a private right of action under [a federal statute] that is in turn enforceable through section 1983, is that Plaintiff may be able to recover attorneys fees, whereas a finding of preemption alone will not allow for recovery of attorneys fees”).

447. See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 286 n.5 (2002); id. at 292 (Breyer, J., concurring); Maine v. Thiboutot, 448 U.S. 1, 24 (1980) (Powell, J., dissenting).

448. Malesko, 534 U.S. at 74; compare also id. at 75 (Scalia, J., concurring ) (decrying Bivens as a “relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition”) with Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 642-43 (2002) (unanimous opinion by Justice Scalia upholding jurisdiction over claim for injunctive relief under Supremacy Clause against state regulation pre-empted by federal law, despite argument that the federal statute does not create a cause of action).

449. See, e.g., Verizon, 535 U.S. at 642; Crosby v. National Foreign Trade Council, 530 U.S. 363, 371 (2000)Shaw v. Delta Air Lines, 463 U.S. 85, 96, n.14 (1983).

450. See, e.g., Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 478 (1996) (remanding case “for entry of an order enjoining the enforcement of Amendment 68 [of the Arkansas Constitution] only to the extent that the amendment imposes obligations inconsistent with federal law”); Engelman v. Amos, 404 U.S. 23 (1971).

451. Compare Nantahala Power and Light Company v. Thornburg, 476 U.S. 953 (1986) (invalidating state commission rate-making order that misallocated costs and remanding case) with In re Nantahala Power and Light Company, 87 P.U.R.4th 217, 1987 WL 257989 (N.C. Util. Comm’n Nov. 13, 1987) (recalculating utility rates in light of Supreme Court decision).

452. Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 107 (1989); Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613 (1979)See also  Equal Access for El Paso v. Hawkins, 562 F.3d 724, 730 (5th Cir. 2009).

453. Golden State II, 493 U.S. at 107 n.4.

454. See Chapman, 441 U.S. at 613; Golden State II, 493 U.S. at 107 (characterizing Chapman).

455. See Chapman, 441 U.S. at 606, 612-13. In December 1980, Congress removed the $10,000 amount-in-controversy requirement for federal question jurisdiction under 28 U.S.C. § 1331.  Pub. L. No. 96-486, 94 Stat. 2369 (1980).

456. See Bobroff, Section 1983 and Preemption, supra note 299, at 69.

457. See Gonzaga University v. Doe, 536 U.S. 273, 283, 284 n.3 (2002) (holding that, to be enforceable under § 1983, a statute must create “an unambiguously conferred right” as shown by “‘right- or duty- creating language’”) (quoting Cannon v. University of Chicago, 441 U.S. 677, 690 n.13 (1979)).

458Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001), aff’d sub nom Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003). 

459.  Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 117 (1989) (Kennedy, J., dissenting); see Western Air Lines v. Port Authority, 817 F.2d 222, 225 (2d Cir. 1987) (noting the “potential anomaly of rejecting a private right of action to enforce a statute while allowing a claim under the Supremacy Clause,” but observing the different function of a Supremacy Clause claim).

460. Golden State II, 493 U.S. at 107-08.

461. Golden State II, 493 U.S. at 119 (Kennedy, J., dissenting) (citations omitted).

462  Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003); see also California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 (1987) (considering on the merits employer’s claim that Pregnancy Discrimination Act preempted state law requiring pregnancy leave).

463. Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001). Similarly, in Crosby v. National Foreign Trade Council, 530 U.S. 363, 373-74 (2000), the Court allowed private companies to enforce the Burma sanctions provisions of the Foreign Appropriations Act, which were not passed for the purpose of giving companies an enforceable right to do business in Burma.

464. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Illinois Association of Mortgage Brokers v. Office of Banks and Real Estate, 308 F.3d 762, 765 (7th Cir. 2002); Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 249 F.3d 66, 73 (1st Cir. 2001) (in the context of rejecting the defendant’s challenge to the plaintiff’s prudential standing); St. Thomas-St. John Hotel and Tourism Association. v. U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000); Self-Insurance Institute v. Korioth, 993 F.2d 479, 482-83 (5th Cir. 1993); Western Air Lines v. Port Authority, 817 F.2d 222, 225-26 (2d Cir. 1987) (upholding claim of preemption by Airline Deregulation Act despite prior finding that the Act could not be enforced through an implied right of action or § 1983), cert. denied, 485 U.S. 1006 (1988); see also Indian Oasis-Baboquivari Unified School District v. Kirk, 91 F.3d 1240, 1256-57 (9th Cir. 1996) (Reinhardt, J., dissenting on other grounds) (“[A] plaintiff may sue directly under the Supremacy Clause even if the assertedly preemptive federal statute does not provide a cause of action or give rise to enforceable rights that could serve as the basis for a § 1983 suit on preemption grounds.”); Wright Electric, Incorporated v. Minnesota State Board of Electricity, 322 F.3d 1025, 1028-29 (8th Cir. 2003); Wachovia Bank, 414 F.3d 305; Sprint Corporation v. Evans, 818 F. Supp. 1447, 1453 (M.D. Ala. 1993).

465. St. Thomas, 218 F.3d at 241; see also Qwest Corporation, 380 F.3d at 1266 (“A federal statutory right or right of action is not required where a party seeks to enjoin the enforcement of a regulation on the grounds that the local ordinance is preempted by federal law. A party may bring a claim under the Supremacy Cause that a local enactment is preempted even if the federal law at issue does not create a right of action.”).

466. Planned Parenthood of Houston and Southeast Texas, 403 F.3d at 335; Illinois Association of Mortgage Brokers, 308 F.3d at 765.

467. Independent Living Center of Southern California v. Shewry, 543 F.3d 1050, 1062 (9th Cir. 2008); Lankford v. Sherman, 451 F.3d 496, 509-10 (8th Cir. 2006); Qwest Corporation, 380 F.3d at 1266.

468. Ex Parte Young, 209 U.S. 123 (1908).

469. Green v. Mansour, 474 U.S. 64, 68 (1985); see also Board of Trustees v. Garrett, 531 U.S. 356, 374 n.9 (2001) (noting that injunctive relief is available against states under Title I of the Americans with Disabilities Act even though damages are not); Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 759 (2003) (Kennedy, J., dissenting) (making the same argument for the Family and Medical Leave Act).

470. Blessing v. Freestone, 520 U.S. 329, 342 (1997) (quoting   Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 106 (1989).

471 See, e.g., Blessing, 520 U.S. 329, 344; M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1306 (D. Utah 2003).

472. Crosby, 530 U.S. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)); accord Gade v. National Solid Wastes Management Association, 505 U.S. 88, 98 (1992); Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644, 684-85 (2003) (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in part and dissenting in part).

473. In Nash v. Florida Industrial Commission, 389 U.S. 235 (1967), for example, the Court held that a Florida statute denying unemployment insurance to individuals who filed unfair labor practice charges conflicted with the general objectives of the National Labor Relations Act (NLRA), even though the NLRA is directed at employers, not states, and the Florida law did not conflict with any specific provision of the NLRA.  

474. Crosby, 530 U.S. at 373 (citation omitted).  See also Independent Living Center of Southern California v. Maxwell-Jolly, 572 F.3d 644, 653 (9th Cir. 2009) ("the first step in any conflict preemption analysis is to determine the purpose of the federal law at issue").

475. See Altria Group, Incorporated v. Good, 129 S. Ct. 538, 543 (2008); Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 1195 n.3 (2009).

476. Bates v. Dow Agrosciences Limited Liability Corporation, 544 U.S. 431, 449 (2005).

477. Id. (quoting Medtronic, Incorporated v. Lohr, 518 U.S. 470, 485 (1996)).

478Altria Group, 129 S. Ct. at 549.

479. See Riegel v. Medtronic, Incorporated, 552 U.S. 312, 128 S. Ct. 999, 1013-14 (2008) (Ginsburg, J., dissenting). See also Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246, 256 (2004) (acknowledging that the Court did not invoke any “‘presumption against pre-emption’ … [a] method[] on which not all Members of this Court agree”).

480. See Riegel, 128 S. Ct. at 1007-08; Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364, 128 S. Ct. 989, 995-96 (2008).

Updated 2012